For over 40 years, Florida’s Justice Administrative Commission (“JAC”) has provided administrative support to the state judicial branch. Among its managerial tasks is overseeing the payment of court-appointed lawyers who represent defendants unable to afford counsel (indigent defendants). In 2004, JAC was first given the job of reviewing and approving invoices of private attorneys who had been appointed by the courts to represent indigent defendants.

In 2013, JAC begin its registry for attorneys appointed by the courts in Capital Collateral cases as well as undertaking the task of both contracting with and paying private court-appointed lawyers in their representations in the capital collateral cases. Florida Capital Collateral cases involve death penalty appeals.

JAC is made up of two State Attorneys and two Public Defenders. These are appointees; the prosecutors are appointed by the President of the Florida Prosecuting Attorneys Association, and the defense attorneys are appointed by the President of the Florida Public Defender Association.

Death Penalty Defense Attorney Terry Lenamon hard at work in an airport hallway while waiting for his red-eye flight.

Terry Lenamon’s Case against Justice Administrative Commission

In 2009, Terry Lenamon sued JAC over interim compensation and costs in a death penalty defense case out of Lee County. While his arguments were persuasive at the trial level, and recognized as both fair and reasonable by the appellate court, he was limited to the stated legal rate for death penalty defense in the State of Florida ($100/hour at the time). Just. Admin. Comm’n v. Lenamon, 19 So.3d 1158 (Fla. 2d DCA 2009)( quoting Florida Statutes § 27.5304(12)(d)(2007)).

Notes the appellate court:

“Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court’s order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.”

This case has served as precedent in future matters dealing with indigent defense representation and the need for prompt and proper payment of indigent defense fees and costs.

Point to Ponder: how indigent defense lawyers in Florida capital cases must meet the need for zealous representation of defendants fighting against the death penalty while coping with the financial realities of small hourly rates and staggered payments.

This month, the trial of Markeith Loyd continues in an Orlando courtroom with Terry Lenamon at the defense table. While prior Florida state attorney Ayala declined to proceed with the death penalty, it is back on the table.

Jurisdictions that imposed the death penalty during the year 2018. Graphic: DPIC

2018: Death Penalty in Florida

Of course, the State of Florida is included in this yearly recap on both death sentences and executions, as well as exonerations for those living on Florida’s Death Row. What were the major events insofar as capital punishment in Florida during the past twelve months?

Seven Death Sentences

Last year, Florida tied with Texas as having the most death sentences imposed during 2018. Both states saw seven (7) individuals sentenced to death. Together with California and Ohio, these four states were responsible for over half of all death sentences last year (57%).

Fourteen states and the federal government imposed death sentences in 2018, but 57% of those sentences came from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). Even as the backlog of cases from two years of uncertainty about the constitutionality of Florida’s sentencing procedures increased the number of capital trials in the state, the new law barring judges from imposing the death penalty without a unanimous jury recommendation for death resulted in at least four life sentences that might previously have produced death verdicts.

2. One Exoneration: Clemente Javier Aguirre

Florida saw one Florida Death Row Inmate freed during the year 2018. Mr. Clemente Javier Aguire left prison in November, after being sentenced to death 12 years earlier. Key appellate arguments here included challenges to DNA evidence as well as credibility of one of the state’s key witness.

Clemente Javier Aguirre was exonerated from Florida’s death row on November 5, after jury selection for his retrial had already begun. He was the 28th death-row prisoner exonerated in Florida. Aguirre was convicted and sentenced to death in 2006 of the murder of two neighbors–an elderly woman and her adult daughter–in 2004. He steadfastly maintained his innocence, saying he had discovered the women after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. The prosecution’s chief witness against Aguirre was Samantha Williams, the mentally ill daughter and granddaughter of the victims. During the post-conviction process, Aguirre’s lawyers discovered that Williams had confessed to at least five different people that she had killed her relatives. None of the DNA found on the 84 items from the crime scene that were tested matched Aguirre. Most blood samples matched the two victims, and Samantha Williams’s DNA was found on eight bloodstains collected from four different rooms. As with more than 90% of Florida’s death-row exonerees, Aguirre had been sentenced to death by non-unanimous jury recommendations under Florida’s unconstitutional capital sentencing scheme.

The Supreme Court of the United States found the Florida statute that allowed for non-unanimous juries to impose death sentences was unconstitutional. SCOTUS held that every single jury member must agree upon capital punishment before death is imposed. However, the Florida Supreme Court later ruled that it would draw a line on the calendar insofar as when Hurst would apply to Florida’s Death Row inmates: if the case was final before June 2002, when the SCOTUS decision in Ring v. Arizona came down, then Hurst would not be applied and the non-unanimous jury death sentence would stand.

The result? Eric Branch was executed by the State of Florida in 2018, despite his jury voting 10-2 for the death penalty.

Two men, Eric Branch in Florida and Walter Moody in Alabama, were executed after non-unanimous juries recommended death sentences. Branch, who was only 21 at the time of his crime, received a 10-2 jury recommendation for death, an outcome that could not produce a death sentence today. In 2016, in Hurst v. Florida, the U.S. Supreme Court struck down the Florida sentencing scheme under which Branch was tried and condemned. Branch was one of 200 prisoners sentenced under Florida’s unconstitutional statute who still face execution as a result of a Florida Supreme Court ruling that it will enforce Hurst only in cases finalized after June 2002, when the U.S. Supreme Court decided a related case, Ring v. Arizona. In 2018, the U.S. Supreme Court declined to review 84 Florida cases in which defendants had been sentenced to death under the unconstitutional statute. Alabama law still allows non-unanimous jury recommendations for death, as long as at least 10 jurors agree, but Moody’s 11-1 jury recommendation would result in a life sentence in nearly every other death-penalty state.

Markeith Loyd Trial: Judge Denies Recusal Request

This week, Orange-Osceola Chief Judge Frederick Lauten denied the defense motion seeking his recusal, filed by Terence Lenamon on December 5, 2018. See, “Chief judge won’t recuse himself in Markeith Loyd case,” written by Gal Tziperman Lotan and published by the Orlando Sentinel on December 10, 2018.

Excerpt from the Motion: Fair Trial or Prejudice

The following excerpt explains some of the defense arguments regarding how it is feared that the defendant in this capital case will not get a fair trial or that he will be prejudiced in some way:

First. the method in which this Court stated that it was appointed to the case is contradicted by the order of appointment. The original order of appointment states the Court was appointed via a method of judicial rotation. Conversely. the Court stated he directed the Administrative Judge to transfer the case to him. Both of these cannot be accurate. and based on that incongruity, Defendant fears that he will not receive a fair trial. or that he will suffer prejudice or bias from the Court.

Second. the Court ignored or downplayed obvious deficits in the Defendant’s mental state that could not pass muster in a proper Faretra hearing, and the Court consequently failed to initially appoint standby counsel. This causes the Defendant to be fearful that he will not receive a fair trial, or that he will suffer prejudice or bias from the Court.

Third. the Court was significantly active in investigations concerning Defendant both prior to his appointment and during his initial period as the assigned judge of the instant cases. He signed in excess of twelve warrants, some of which were apparently concealed from the Stale and defense by the police officers. One of the warrants requested that the Court not disclose information because of the ongoing nature of the investigation. Court’s intimate involvement in these investigations. combined with the fact that Defendant only very recently learned about such involvement in any detail. causes Defendant to fear that he will not receive a fair trial. or that he will suffer prejudice or bias from the Court.

Fourth. the Court did not comply with Florida Statutes 934.09(8)(e), which requires that the issuing Judge “shall cause to be served on the persons named in the order or the application. and such other parties to intercepted communications as the judge ma. determine in his or her discretion to be in the interest of justice, an inventory which shall include notice of:

The fact or the entry of the order or the application

The date of the entry and the period of authorized, approved. or disapproved interception. or the denial of the application

The fact that during the period wire, oral or electronic communications were or were not intercepted.”

Although the Defendant was named in at least one wiretap order. he was not served with the notice required under 934.09(8)(c). The Court’s failure to provide the requisite notice tu Defendant on an important issue causes Defendant to be fearful that he will not receive a fair trial. or that he will suffer prejudice or bias from the Court.

Finally. the cumulative impact of the Court’s actions (or inactions) discussed herein causes Defendant to be fearful that he will not receive a fair trial. or that he will suffer prejudice or bias from the Court.

Click on the image to read the full text of the Motion, as filed of record, which has been placed into the Terence Lenamon Online Library:

Three John Grisham Books Dealing with the Death Penalty

1. The Chamber

In the corridors of Chicago’s top law firm:Twenty -six-year-old Adam Hall stands on the brink of a brilliant legal career. Now he is risking it all for a death-row killer and an impossible case.Maximum Security Unit, Mississippi State Prison:Sam Cayhall is a former Klansman and unrepentant racist now facing the death penalty for a fatal bombing in 1967….

2. The Confession

An innocent man is about to be executed. Only a guilty man can save him. For every innocent man sent to prison, there is a guilty one left on the outside. He doesn’t understand how the police and prosecutors got the wrong man, and he certainly doesn’t care. He just can’t believe his good luck. Time passes and he realizes that the mistake….

3. The Innocent Man: Murder and Injustice in a Small Town (non-fiction)

In the major league draft of 1971, the first player chosen from the State of Oklahoma was Ron Williamson. When he signed with the Oakland A’s, he said goodbye to his hometown of Ada and left to pursue his dreams of big league glory.

Six years later he was back, his dreams broken by a bad arm and bad habits—drinking, drugs, and women. He began to show signs of mental illness. Unable to keep a job, he moved in with his mother and slept twenty hours a day on her sofa.

In 1982, a 21-year-old cocktail waitress in Ada named Debra Sue Carter was raped and murdered, and for five years the police could not solve the crime. For reasons that were never clear, they suspected Ron Williamson and his friend Dennis Fritz. The two were finally arrested in 1987 and charged with capital murder.

With no physical evidence, the prosecution’s case was built on junk science and the testimony of jailhouse snitches and convicts. Dennis Fritz was found guilty and given a life sentence. Ron Williamson was sent to death row.

If you believe that in America you are innocent until proven guilty, this book will shock you. If you believe in the death penalty, this book will disturb you. If you believe the criminal justice system is fair, this book will infuriate you.

In two of Terry Lenamon’s capital cases, he has filed motions for continuance of the trial dates because of funding issues. The motions have been filed in the Loyd proceeding as well as in State of Florida v. Paul Hildwin. Full copies of these motions, together with the State’s Response and the Notice of Discovery in Hildwin, have been placed in Terry’s online library.

Impending Trial Dates in Both Death Penalty Cases

In both these matters, Terry and the criminal defense team face preparing for major death penalty trials in short order:

Loyd is set for trial on May 9, 2019. That is 163 days from today (November 27, 2018).

Hildwin is set for trial on April 1, 2019. That is 125 days from today (November 27, 2018).

In Arbelaez v. Butterworth, 738 So.2d 326 (Fla. 1999), Capital Collateral Regional Counsel (CCRC) for the northern and southern regions of Florida asked the Florida Supreme Court to “exercise its all writs jurisdiction to stay all applicable time limits, court proceedings, and executions until adequate funding was provided to CCRC or until July 1, 1998, the start of the next fiscal year.” Before the Court could decide the issue directly, the funding in question “significantly changed and increased” causing a substantial change in circumstances, thus depriving the Court of a case or controversy to rule on. Id. at 326-327. Nearly 20 years later, the State of Florida is once again facing a significant shortfall in funds that have been made available for representation of defendants in capital cases.

On October 2, 2018, Cris Martinez, General Counsel to the JAC, issued a memorandum (attached hereto) to the JAC Commissioners projecting an approximate $16.4 million shortfall for the fiscal year. Nearly $10 million of that shortfall is connected to Criminal Conflict case costs, which includes all due process providers (experts, investigators, etc.) and related expenses. The original appropriation for Criminal Conflict case costs for the fiscal year was set at $25,484,827.00. The estimated expenditure for the same period is $35,459,523.00. Based on these estimates, JAC will run out of money for due process providers by late February to mid-March 2019.

As of today, JAC is taking in excess of 4 weeks to process due process provider payments. At that rate, those due process provider bills filed beginning in late January 2019 will not be paid until the new fiscal year (which begins on July 1, 2019). Thus, there will be an approximate 5-month window where due process providers will not be receiving any payment for their services.

“An invoice submitted to an agency of the state or the judicial branch, required by law to be filed with the Chief Financial Officer, shall be recorded in the financial systems of the state, approved for payment by the agency or the judicial branch, and filed with the Chief Financial Officer not later than 20 days after receipt of the invoice and receipt, inspection, and approval of the goods or services, except that in the case of a bona fide dispute the invoice recorded in the financial systems of the state shall contain a statement of the dispute and authorize payment only in the amount not disputed.” Fla. Stat. § 215.422(1). This 20-day requirement may be waived by the Department of Financial Services (DFS) “on a showing of exceptional circumstances in accordance with rules and regulations of the department.” Ibid. The DFS must approve payment of the invoice within 10 days after the agency’s filing, but this requirement may also be waived by the DFS “on a showing of exceptional circumstances in accordance with rules and regulations of the department.” Fla. Stat. § 215.422(2). The failure to issue a warrant of payment for undisputed amounts “within 40 days after receipt of the invoice and receipt, inspection, and approval of the goods and services” results in the State of Florida incurring an interest penalty. Fla. Stat. § 215.422(3)(b).

“Prompt payment is the terminology used to describe the statutory requirement to pay obligations of the state within a period of 40 calendar days from the date the obligation is eligible to be paid.” Justice Administrative Commission, JAC Disbursements Accounting “Hot Topics,” May 16, 2017. Starting in February 2019, the State of Florida will not live up to its obligation to provide prompt payment to due process providers in Criminal Conflict capital cases. Once the JAC runs out of money, there will be no other legally available sources to make these payments until the new fiscal year.

Constitutional Rights of Defendants Must Control Over Financial Concerns of the State

Constitutional due process issues and the realities of state budget shortfalls have resulted in issues of payment for experts, mitigation specialists, investigators, and more.

From the Motions (pp 10 – 12)(emphasis added):

The Florida Supreme Court has also issued a number of rulings explaining the primacy of a defendant’s constitutional rights over the state’s financial concerns. “In order to safeguard [a criminal defendant’s] rights, it is our duty to firmly and unhesitatingly resolve any conflicts between the treasury and fundamental constitutional rights in favor of the latter.” Makemson v. Martin County, 491 So.2d 1109, 1113 (Fla. 1986) (holding that absolute fee maximums are “unconstitutional when applied to cases involving extraordinary circumstances and unusual representation.”); see also White v. Board of County Commissioners, 537 So.2d at 1379 (concluding that the statute setting a cap on attorney’s fees in a first-degree murder case “is unconstitutional when applied in such a manner that curtails the court’s inherent power to secure effective, experienced counsel for the representation of indigent defendants in capital cases”); Remeta v. State, 559 So.2d 1132, 1135 (Fla. 1990) (“courts have the authority to exceed statutory fee caps to compensate court-appointed counsel for the representation of indigent, death-sentenced prisoners in executive clemency proceedings when necessary to ensure effective representation”); Maas v. Olive, 992 So.2d 196, 202-203 (Fla. 2008) (“Overall, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates and economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court.”) (citations and quotations omitted).

Over the last three decades, the Florida Supreme Court has time and again emphasized that a defendant’s constitutional rights in criminal cases trump the State of Florida’s financial shortcomings. Nonetheless, these very shortcomings are on full display in the JAC’s warning that it will run out of money for Criminal Conflict cases by late-February 2019. …

“[S]ince the State of Florida enforces the death penalty, its primary obligation is to ensure that indigents are provided competent, effective counsel in capital cases.” White v. Board of County Commissioners, 537 So.2d at 1379. Yet, he anticipated lack of funding for due process providers will substantially undermine Defendant’s constitutional right to meaningful and effective representation in the instant cases.

In White, the Florida Supreme Court explained that “all capital cases by their very nature can be considered extraordinary and unusual” Id. at 1378. This is certainly true of Defendant’s two cases pending before this Court. There are thousands and thousands of pages of discovery to review, hundreds of witnesses to depose and interview, and countless audio and video clips to view. In addition, defense counsel are being forced to deal with an extraordinary amount of negative pre-trial publicity. In particular, certain law enforcement officials have made numerous comments to the press that may harmfully influence potential jurors.

Counsel can only effectively represent Defendant here with ongoing assistance of due process providers. But this assistance is put at risk by the State of Florida’s failure to adequately provide sufficient funding for these providers. “[C]ompensation of counsel and the effectiveness of counsel are inextricably intertwined.” Florida Dept. of Financial Services v. Freeman, 921 So.2d 598, 600 (2006). “The relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided due to the statutory fee limit. As a result, there is a risk that the attorney may spend fewer hours than required representing the defendant or may prematurely accept a negotiated plea that is not in the best interests of the defendant. A spectre is then raised that the defendant received less than the adequate, effective representation to which he or she is entitled, the very injustice appointed counsel was intended to remedy.” White v. Board of County Commissioners, 537 So.2d at 1380.

The exact same thing can be said regarding compensation for due process providers. Without adequate and reasonably assured compensation for investigators, forensic and mental health experts, and mitigation specialists, there’s no way to ensure that these persons will continue to effectively provide their necessary services to defense counsel. Without a guarantee of ongoing assistance of due process providers, capital counsel cannot guarantee their ability to provide adequate representation to Defendant in the instant cases. This creates an untenable situation that significantly risks undermining Defendant’s Sixth Amendment right to counsel. This can only be remedied by continuing the trial in these cases until such a time as JAC will have sufficient funds for all due process providers in these cases. “A reliable system of justice depends on adequate funding at all levels. Obviously, this means adequate funding for competent counsel during trial … including access to thorough investigators and expert witnesses.” Allen v. Butterworth, 756 So.2d 52, 67 (Fla. 2000).

For your consideration, copies of these filings have been placed in the Terence Lenamon Online Library:

All of these cases ask SCOTUS to review decisions made by the Florida Supreme Court as it applies the SCOTUS decision in Hurst v. Florida.

We’ve discussed Hurst before; in sum, SCOTUS found the Florida death penalty statute was unconstitutional because juries did not decide whether or not there were sufficient aggravating factors to impose death (under the law, the judge decided on capital punishment). When Hurst came down, it meant that Florida Death Row inmates who were sentenced to death under an unconstitutional process were due new sentencing trials. They began filing appeals, among them these seven whose writs were denied this Tuesday.

11-13-18 Order: Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Revelation of Three Justices’ Viewpoints on Death Penalty

Most of the Justices simply agreed with the order denying writ; however, three felt passionately enough about the issue to write on the subject. Sotomayor dissented; both Thomas and Breyer concurred.

1. Sotomayor Dissent

Once again, Justice Sotomayor dissented in these death penalty cases arguing that the petitions for writ of certiorari should have been granted. She writes that while each of the seven petitions deal with “gruesome crimes” there should be consideration of the constitutional issues raised by the Death Row Inmates.

“Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional. The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless. Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory. I have dissented before from this Court’s failure to intervene on this issue. Petitioners’ constitutional claim is substantial and affects numerous capital defendants. The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

“[T]his Court’s Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State.” Caldwell, 472 U. S., at 329. The jurors in petitioners’ cases were repeatedly instructed that their role was merely advisory, yet the Florida Supreme Court has treated their recommendations as legally binding by way of its harmlesserror analysis. This approach raises substantial Eighth Amendment concerns. As I continue to believe that “the stakes in capital cases are too high to ignore such constitutional challenges,” Truehill v. Florida, 583 U. S. ___, ___ (2017) (slip op., at 2), I would grant review to decide whether the Florida Supreme Court’s harmless-error approach is valid in light of Caldwell. This Court’s refusal to address petitioners’ challenges signals that it is unwilling to decide this issue. I respectfully dissent from the denial of certiorari, and I will continue to note my dissent in future cases raising the Caldwell question.”

2. Thomas Concurrence

Justice Thomas concurred with the decision to deny these petitions; he is clear it has already been decided the Eighth Amendment (against cruel and unusual punishment) is not violated by the death penalty.

“JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.”

3. Breyer Concurrence

There is also a concurrence from Justice Breyer, where he explains his position on these denials. He does express concerns about capital punishment in this country – not on the act itself, but in how long it is taking to execute those sentenced to death. He calls the delays “unconscionable.” He also has concerns about the retroactive application of Hurst and how judges and juries make the decision to sentence the accused to death (in Florida and elsewhere).

“It seems to me that the jurors in at least some of these cases might not have made a “community-based judgment” that a death sentence was “proper retribution” had they known at the time of sentencing (1) that the death penalty might not be administered for another 40 years or more; (2) that other defendants who were sentenced years later would be entitled to resentencing based on a later-discovered error, but that the defendants in question would not be entitled to the same remedy for roughly the same error; or (3) that the jury’s death recommendation would be treated as if it were decisive, despite the judge’s instruction that the jury’s recommendation was merely advisory. Had jurors known about these issues at the time of sentencing, some might have hesitated before recommending a death sentence. At least a few might have recommended a life sentence instead. The result is that some defendants who have lived under threat of execution for decades might never have been sentenced to death in the first place.

“The flaws in the current practice of capital punishment could often cast serious doubt on the death sentences imposed in these and other capital cases. Rather than attempting to address the flaws in piecemeal fashion, however, I remain of the view that “it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.”